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GS ESCROW CORP.
to be merged with and into
GOLDEN STATE HOLDINGS INC.
Issuer
and
THE BANK OF NEW YORK
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of August 6, 1998
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Floating Rate Notes Due 2003
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FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture"),
dated as of August 6, 1998, between GS ESCROW CORP., a Delaware corporation (the
"Issuer"), and THE BANK OF NEW YORK, a New York banking corporation, as trustee
(the "Trustee").
WHEREAS the Issuer has executed and delivered to the Trustee an
Indenture (the "Original Indenture"), dated as of August 6, 1998, providing for
the issuance and sale by the Issuer from time to time of its senior debt
securities (the "Securities"), which term shall include any Securities issued
under the Indenture (as defined below) after the date hereof;
WHEREAS Section 9.01(5) of the Indenture permits the Issuer and the
Trustee, at any time and from time to time, to enter into one or more indentures
supplemental to the Indenture for the purpose of establishing any form of
Security and providing for the issuance of any series of Securities, as provided
in Article II of the Indenture, and setting forth the terms thereof, and/or
adding to the rights of the Holders of the Securities of any series;
WHEREAS the Issuer proposes in and by this First Supplemental Indenture
to supplement and amend the Original Indenture (as so amended, the "Indenture")
in certain respects to establish a series of Securities issued pursuant to the
Indenture designated as the Floating Rate Notes Due 2003 limited in aggregate
principal amount to $250,000,000 (the "Initial Notes") and if and when issued
pursuant to an Exchange Offer or a Private Exchange (each as defined in Appendix
A hereto) for a like principal amount of the Initial Notes, the Issuer's
Floating Rate Notes due 2003 (the "Exchange Notes") (the Initial Notes and the
Exchange Notes together shall constitute one series of Securities for purposes
of the Indenture and are sometimes referred to herein as the "Notes"); and
WHEREAS the Issuer has requested that the Trustee execute and deliver
this First Supplemental Indenture and has certified that all requirements
necessary to make this First Supplemental Indenture a valid instrument in
accordance with its terms have been satisfied, and that the execution and
delivery of this First Supplemental Indenture has been duly authorized in all
respects.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Issuer
and the Trustee hereby covenant and agree for the equal and ratable benefit of
the holders of that series of Securities which consists of Initial Notes and
Exchange Notes as follows:
1. Creation of Series of Securities. Pursuant to Section 2.03 of the
Indenture, there is hereby created a new series of Securities designated as the
"Floating Rate Notes Due 2003" limited in aggregate principal amount to
$250,000,000 and consisting of the Initial Notes and the Exchange Notes. The
Initial
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Notes and the Exchange Notes together shall constitute one series of Securities
for purposes of the Indenture.
2. Form, Terms, Issuance and Transfer of Securities. Provisions
relating to the Initial Notes and the Exchange Notes are set forth in Appendix A
hereto, which is hereby incorporated in and expressly made a part of this First
Supplemental Indenture. The Initial Notes shall be substantially in the form
annexed hereto as Exhibit A. The terms and provisions contained in the form of
the Initial Notes annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this First Supplemental Indenture. The Exchange Notes
shall be substantially in the form annexed hereto as Exhibit B. The terms and
provisions contained in the form of the Exchange Notes annexed hereto as Exhibit
B shall constitute, and are hereby expressly made, a part of this First
Supplemental Indenture. To the extent applicable, the Issuer and the Trustee, by
their execution and delivery of this First Supplemental Indenture, expressly
agree to such terms and provisions and to be bound thereby.
3. Amendment to Section 2.06 (Registrar and Paying Agent). Section 2.06
of Article II of the Indenture is hereby supplemented and amended, solely with
respect to that series of Securities which consists of the Notes, by adding
thereto at the end thereof the following:
"The Trustee shall act as the calculation agent (the "Calculation
Agent") in respect of the series of Securities designated as the "Floating Rate
Notes Due 2003" pursuant to the First Supplemental Indenture hereto and shall
make all determinations of the Applicable LIBOR Rate (as defined in such
Securities), the Treasury Rate (as defined in such Securities) and any
Applicable Premium (as defined in such Securities) in respect of such Securities
(the "Calculations"). The Calculation Agent will, upon the request of the Holder
of any such Security, provide the interest rate then in effect with respect to
such Security. All Calculations made by the Calculation Agent shall in the
absence of manifest error be conclusive for all purposes and binding on the
Issuer and the holders of such Securities. So long as any Calculation is
required to be determined with respect to such Securities, there will at all
times be a Calculation Agent. In the event that any acting Calculation Agent
shall be unable or unwilling to act, or that such Calculation Agent shall fail
to establish the Applicable LIBOR Rate for any Interest Period or fail to make a
Calculation, or that the Issuer proposes to remove such Calculation Agent, the
Issuer shall appoint itself or another person which is a bank, trust company,
investment banking firm or other financial institution to act as the Calculation
Agent."
4. Amendment to Section 8.02 (Defeasance). Section 8.02 of the
Indenture is hereby supplemented and amended, solely with respect to that series
of Securities which consists of the Notes, by adding thereto at the end thereof
the last paragraph of paragraph 12 of the Notes.
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5. Applicability of Defined Terms and Provisions. The definitions of
terms defined in, and the provisions set forth in, this First Supplemental
Indenture and the Appendix and Exhibits attached hereto, shall apply only to the
series of Securities established pursuant to this First Supplemental Indenture.
6. This First Supplemental Indenture. This First Supplemental
Indenture, together with the Appendix and the Exhibits hereto shall be construed
as supplemental to the Original Indenture and shall form a part of it. The
Original Indenture is hereby incorporated by reference herein and, except as
expressly amended hereby, is hereby ratified, approved and confirmed and all
terms, conditions and provisions thereof shall remain in full force and effect.
7. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
8. Counterparts. This First Supplemental Indenture may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute but one instrument.
9. Headings. The headings of this First Supplemental Indenture are for
reference only and shall not limit or otherwise affect the meaning hereof.
10. Trustee Not Responsible for Recitals. The recitals herein contained
are made by the Issuer, and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or sufficiency of
this First Supplemental Indenture.
11. Separability. In case any one or more of the provisions contained
in this First Supplemental Indenture or in the series of Securities created
hereby shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of the First Supplemental Indenture or of such series of
Securities, but this First Supplemental Indenture and such series of the
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
GS ESCROW CORP.
By _________________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By _________________________________
Name:
Title:
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APPENDIX A TO FIRST
SUPPLEMENTAL INDENTURE
GS ESCROW CORP.
FLOATING RATE NOTES DUE 2003
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO
RULE 144A, TO CERTAIN PERSONS IN OFFSHORE TRANSACTIONS IN
RELIANCE ON REGULATION S AND, SUBJECT TO THE APPLICABLE
PURCHASE AGREEMENT, TO INSTITUTIONAL ACCREDITED
INVESTORS.
PROVISIONS RELATING TO INITIAL NOTES
AND EXCHANGE NOTES
1. Definitions
1.1 Definitions.
(a) Capitalized terms used herein and not defined have the meaning
ascribed to such terms in the Indenture, including the First Supplemental
Indenture to which this Appendix A is attached (the "Applicable Supplemental
Indenture").
(b) For the purposes of this Appendix A the following terms shall have
the meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Note or beneficial
interest therein, the rules and procedures of the Depository, Euroclear and
Cedel for such Global Note, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Cedel" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Definitive Security" means a certificated Initial Note or Exchange
Note bearing, if required, the restricted securities legend set forth in Section
2.3(e).
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Exchange Offer" means an offer by the Issuer pursuant to the
Registration Agreement or otherwise, to certain Holders of Initial Notes, to
issue and deliver to such Holders, in exchange for the Initial Notes, a like
aggregate principal amount of Exchange Notes registered under the Securities
Act.
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"Exchange Offer Registration Statement" means a registration statement
of the Issuer on an appropriate form under the Securities Act with respect to
the Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"IAI" means an institutional "accredited investor" as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Salomon Brothers Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Bear, ▇▇▇▇▇▇▇ & Co., Inc., and ▇▇▇▇▇▇ Brothers Inc.
"Private Exchange" means the offer by the Issuer, pursuant to Section 1
of the Registration Agreement, or pursuant to any similar provision of any other
Registration Agreement, to issue and deliver to certain purchasers, in exchange
for the Initial Notes held by such purchasers as part of their initial
distribution, a like aggregate principal amount of Private Exchange Notes.
"Private Exchange Notes" means the Floating Rate Notes Due 2003 to be
issued pursuant to this Indenture in connection with a Private Exchange pursuant
to a Registration Agreement.
"Purchase Agreement" means the Purchase Agreement, dated July 30, 1998,
among the Issuer, the Initial Purchasers, Chase Securities Inc. and NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC relating to the Initial Notes, or any similar
agreement relating to any future sale of Initial Notes by the Issuer.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Agreement" means the Registration Agreement dated July
30, 1998, among Escrow Corp., Golden State Holdings and the Initial Purchasers
relating to the Initial Securities.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository), or any successor person thereto who
shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement issued by
the Issuer in connection with the offer and sale of Initial Notes or Exchange
Notes pursuant to the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and any
other Securities that bear or are required to bear the legend set forth in
Section 2.3(e) hereto.
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1.2 Other Definitions.
Defined in
Term Section:
---- ----------
"Agent Members"......................................... 2.1(b)
"Global Security"....................................... 2.1(a)
"Permanent Regulation S Global Security"................ 2.1(a)
"Regulation S".......................................... 2.1
"Restricted Period"..................................... 2.1(a)
"Rule 144A"............................................. 2.1
"Rule 144A Global Security"............................. 2.1(a)
"Temporary Regulation S Global Security"................ 2.1(a)
2. The Notes
2.1 Form and Dating.
The Initial Notes will be offered and sold by the Issuer, from time to
time, pursuant to one or more Purchase Agreements. The Initial Notes will be
resold, initially only to QIBs in reliance on Rule 144A under the Securities Act
("Rule 144A") and in reliance on Regulation S under the Securities Act
("Regulation S"). Initial Notes may thereafter be transferred to, among others,
QIBs, purchasers in reliance on Regulation S and IAIs under Rule
501(a)(1),(2),(3) or (7) under the Securities Act.
(a) Global Securities. Rule 144A Notes shall be issued initially in the
form of one or more permanent global Notes in definitive, fully registered form
(collectively, the "Rule 144A Global Security") and Regulation S Notes shall be
issued initially in the form of one or more temporary global Notes
(collectively, the "Temporary Regulation S Global Security"), in each case
without interest coupons with the global securities legend and restricted
securities legend set forth in Exhibit A to the Applicable Supplemental
Indenture, which shall be deposited on behalf of the purchasers of the Initial
Notes represented thereby with the Securities Custodian, and registered in the
name of the Depository or a nominee of the Depository, duly executed by the
Issuer and authenticated by the Trustee as provided in the Indenture. Beneficial
ownership interests in the Temporary Regulation S Global Security will not be
exchangeable for interests in the Rule 144A Global Security, a permanent global
security (the "Permanent Regulation S Global Security"), or any other security
without a legend containing restrictions on transfer of such Note prior to the
expiration of the 40-day distribution compliance period as set forth under Rule
9.03(b) (the "Restricted Period") under the Securities Act and then only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act. The Rule
144A Global Securities, Temporary Regulation S Global Security and Permanent
Regulation S Global Security are
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collectively referred to herein as "Global Securities." The aggregate principal
amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depository or its
nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depository.
The Issuer shall execute and the Trustee shall, in accordance with this
Section 2.1(b) and pursuant to an Issuer Order, authenticate and make available
for delivery initially one or more Global Securities that (a) shall be
registered in the name of the Depository for such Global Security or Global
Securities or the nominee of such Depository and (b) shall be delivered by the
Trustee to such Depository or pursuant to such Depository's instructions or held
by the Trustee as Securities Custodian.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under the Indenture with respect to any Global Security held on
their behalf by the Depository or by the Trustee as Securities Custodian or
under such Global Security, and the Depository may be treated by the Issuer, the
Trustee and any agent of the Issuer or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices of such Depository
governing the exercise of the rights of a holder of a beneficial interest in any
Global Security.
(c) Definitive Securities. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Notes.
2.2 Authentication. The Trustee shall authenticate and make available
for delivery: (1) Initial Notes for original issue in an aggregate principal
amount of $250,000,000 and (2) Exchange Notes for issue from time to time only
in an Exchange Offer or a Private Exchange pursuant to a Registration Agreement,
for a like principal amount of Initial Notes, upon an Issuer Order. Such order
shall specify the amount of the Notes to be authenticated and the date on which
the original issue of Notes is to be authenticated and, if such order is being
delivered other than on the Issue Date, whether the Notes are to be Initial
Notes or Exchange Notes. The aggregate principal amount of Notes Outstanding at
any time may not exceed the amount set forth in the first sentence of this
Section 2.2, except as provided in Section 2.10 of the Indenture.
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2.3 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented to the Registrar or a co-registrar with a request for
transfer or exchange, the Registrar or co-registrar shall register the transfer
or make the exchange as provided in Section 2.09 of the Indenture; provided,
however, that the Definitive Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Issuer and the Registrar or
co-registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act, pursuant to Section 2.3(b)
or pursuant to clause (A), (B) or (C) below, and are accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive Securities are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
with out transfer, a certification from such Holder to that effect (in
the form set forth in the Definitive Security); or
(B) if such Definitive Securities are being transferred to the
Issuer, a certification to that effect (in the form set forth in the
Definitive Security ); or
(C) if such Definitive Securities are being transferred pursuant
to an exemption from registration in accordance with Rule 144 under
the Securities Act, (i) a certification to that effect and (ii) if the
Issuer so requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions set
forth in the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
Interest in a Global Security. A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Issuer and the Registrar or co-registrar,
together with:
(i) certification (in the form set forth in the Definitive Security)
that such Definitive Security is being transferred (A) to a QIB in
accordance with Rule 144A, (B) to an IAI that has furnished to the Trustee
a signed letter or (C) outside the United States in an offshore transaction
within the meaning of Regulation S and in compliance with Rule 904 under
the Securities Act; and
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(ii) written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an adjustment on its books and records
with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the Depository
account to be credited with such increase;
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not been
previously exchanged pursuant to Section 2.4, the Issuer shall issue and the
Trustee shall authenticate, upon written order of the Issuer in the form of an
Officers' Certificate, a new Global Security in the appropriate principal
amount.
(c) Transfer and Exchange of Global Securities. (i) The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository, in accordance with the Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depository therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depository's
procedures containing information regarding the participant account of the
Depository to be credited with a beneficial interest in the Global Security and
such account shall be credited in accordance with such instructions with a
beneficial interest in the Global Security and the account of the Person making
the transfer shall be debited by an amount equal to the beneficial interest in
the Global Security being transferred. In the case of a transfer of a beneficial
interest in a Global Security to an IAI, the transferee must furnish a signed
letter to the Trustee containing certain representations and agreements (the
form of which letter can be obtained from the Trustee or the Issuer).
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Security to a beneficial interest in another Global Security,
the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security to which such
interest is being transferred in an amount equal to the principal amount of
the interest to be so transferred, and the Registrar shall reflect on its
books and records the date and a corresponding decrease in the principal
amount of Global Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other
than the provisions set forth in Section 2.4), a Global Security may not be
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transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv) In the event that a Global Security is exchanged for Notes in
definitive registered form pursuant to Section 2.4 prior to the
consummation of an Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Notes, such Notes may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the Initial Notes
intended to ensure that such transfers comply with Rule 144A, Regulation S
or such other applicable exemption from registration under the Securities
Act, as the case may be) and such other procedures as may from time to time
be adopted by the Issuer.
(d) Restrictions on Transfer of Temporary Regulation S Global
Securities. During the Restricted Period, beneficial ownership interests in
Temporary Regulation S Global Securities may only be sold, pledged or
transferred through Euroclear or Cedel in accordance with the Applicable
Procedures and only (i) to the Issuer, (ii) so long as such security is eligible
for resale pursuant to Rule 144A, to a person whom the selling holder reasonably
believes is a QIB that purchases for its own account or for the account of a QIB
to whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, (iii) in an offshore transaction in accordance with
Regulation S, (iv) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under the Securities Act, or
(v) pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any state of the
United States. During the Restricted Period, interests in the Temporary
Regulation S Global Security may not be transferred to institutions that are
"Accredited Investors" (but not QIBs) as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) and
(iv), each Note certificate evidencing the Global Securities and the
Definitive Securities (and all Notes issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following
form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS NOTE MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNTIL THE SECOND ANNIVERSARY OF THIS
NOTE'S DATE OF ORIGINAL ISSUANCE
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OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS NOTE), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE
BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS NOTE) PROVIDED THAT A CERTIFICATE WHICH MAY BE OBTAINED FROM THE
ISSUER IS DELIVERED BY CERTAIN TRANSFEREES SPECIFIED IN THE INDENTURE TO
THE ISSUER, (4) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS NOTE) THAT IS ACQUIRING THIS NOTE FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH MAY
BE OBTAINED FROM THE ISSUER OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE
TO THE ISSUER AND THE TRUSTEE (PROVIDED THAT CERTAIN HOLDERS SPECIFIED IN
THE INDENTURE MAY NOT TRANSFER THIS NOTE PURSUANT TO THIS CLAUSE (4) PRIOR
TO THE EXPIRATION OF THE "40 DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN
THE MEANING OF RULE 903(b) OF REGULATION S UNDER THE SECURITIES ACT)), (5)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR (6)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS
NOTE AGREES IT WILL FURNISH TO THE ISSUER AND THE TRUSTEE SUCH CERTIFICATES
AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY
TRANSFER BY IT OF THIS NOTE COMPLIES WITH THE FOREGOING RESTRICTIONS. THE
HOLDER HEREOF, BY PURCHAS ING THIS NOTE, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT
9
IS HOLDING THIS NOTE FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR
(3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR
AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902
UNDER) REGULATION S UNDER THE SECURITIES ACT."
Each Definitive Security will also bear the following additional
legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security
that does not bear the legends set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security that is
represented by a Global Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security,
in either case, if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Note).
(iii) After a transfer of any Initial Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Initial Notes, all requirements pertaining to legends on such Initial Note
will cease to apply, the requirements requiring that any such Initial Note
be issued in global form will cease to apply, and an Initial Note in
certificated or global form without legends will be available to the
transferee of the Holder of such Initial Notes upon exchange of such
transferring Holder's certificated Initial Note. Upon the occurrence of any
of the circumstances described in this paragraph, the Issuer will deliver
an Officers' Certificate to the Trustee instructing the Trustee to issue
Notes without legends.
10
(iv) Upon the consummation of an Exchange Offer with respect to the
Initial Notes pursuant to which certain Holders of such Initial Notes are
offered Exchange Notes in exchange for their Initial Notes, all
requirements pertaining to such Initial Notes that Initial Notes be issued
in global form will cease to apply, and certificated Initial Notes with the
restricted securities legend set forth in Exhibit A to the Applicable
Supplemental Indenture will be available to Holders of such Initial Notes
that do not exchange their Initial Notes, and Exchange Notes in
certificated or global form will be available to Holders that exchange such
Initial Notes in such Exchange Offer. Upon the occurrence of any of the
circumstances described in this paragraph, the Issuer will deliver an
Officers' Certificate to the Trustee instructing the Trustee to issue
Securities without legends.
(v) Upon the consummation of a Private Exchange with respect to the
Initial Notes pursuant to which Holders of such Initial Notes are offered
Private Exchange Notes in exchange for their Initial Notes, all
requirements pertaining to such Initial Notes that Initial Notes issued to
certain Holders be issued in global form will continue to apply, and
Private Exchange Notes in global form will be available to Holders that
exchange such Initial Notes in such Private Exchange.
(f) Cancelation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for
certificated or Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depository to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
certificated or Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Notes represented by such Global Security shall be reduced
and an adjustment shall be made on the books and records of the Trustee (if it
is then the Securities Custodian for such Global Security) with respect to such
Global Security, by the Trustee or the Securities Custodian, to reflect such
reduction.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
Terms and provisions for registration of transfer or exchange of the Notes shall
be as set forth in Section 2.09 of the Indenture.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in the
Depository or any other Person with respect to the accuracy of the records
of the Depository or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice of
redemption or repurchase)
11
or the payment of any amount, under or with respect to such Notes. All
notices and communications to be given to the Holders and all payments to
be made to Holders under the Notes shall be given or made only to the
registered Holders (which shall be the Depository or its nominee in the
case of a Global Security). The rights of beneficial owners in any Global
Security shall be exercised only through the Depository subject to the
applicable rules and procedures of the Depository. The Trustee may rely and
shall be fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any beneficial
owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Depository participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of the Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
2.4 Certificated Securities.
(a) A Global Security deposited with the Depository or with the Trustee
as Securities Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of certificated Notes in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.3 and (i) the Depository notifies the Issuer that it is unwilling or unable to
continue as a Depository for such Global Security or if at any time the
Depository ceases to be a "clearing agency" registered under the Exchange Act,
and a successor depositary is not appointed by the Issuer within 90 days of such
notice, or (ii) an Event of Default has occurred and is continuing or (iii) the
Issuer, in its sole discretion, notifies the Trustee in writing that it elects
to cause the issuance of certificated Securities under the Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depository to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of certificated Notes of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any integral
multiple thereof and registered in such names as the Depository shall direct.
Any certificated Initial Note delivered in exchange for an interest in the
Global Security shall, except as otherwise provided by Section 2.3(e), bear the
restricted securities legend set forth in Exhibit A to the Applicable
Supplemental Indenture.
12
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of either of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Issuer will promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
GS ESCROW CORP.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
THE BANK OF NEW YORK, as Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A TO FIRST
SUPPLEMENTAL INDENTURE
[FORM OF FACE OF INITIAL NOTE]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS NOTE MAY NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED UNTIL THE SECOND ANNIVERSARY OF THIS NOTE'S DATE OF
ORIGINAL ISSUANCE OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS THIS NOTE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON
A-1
THE REVERSE OF THIS NOTE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS NOTE) PROVIDED
THAT A CERTIFICATE WHICH MAY BE OBTAINED FROM THE ISSUER IS DELIVERED BY CERTAIN
TRANSFEREES SPECIFIED IN THE INDENTURE TO THE ISSUER, (4) TO AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS NOTE) THAT IS ACQUIRING THIS NOTE
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE
OBTAINED FROM THE ISSUER OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE
ISSUER AND THE TRUSTEE (PROVIDED THAT CERTAIN HOLDERS SPECIFIED IN THE INDENTURE
MAY NOT TRANSFER THIS NOTE PURSUANT TO THIS CLAUSE (4) PRIOR TO THE EXPIRATION
OF THE "40 DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(b) OF REGULATION S UNDER THE SECURITIES ACT)), (5) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE)
UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED
INVESTOR HOLDING THIS NOTE AGREES IT WILL FURNISH TO THE ISSUER AND THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO
CONFIRM THAT ANY TRANSFER BY IT OF THIS NOTE COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
AND THAT IT IS HOLDING THIS NOTE FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARA GRAPH (k)(2) OF
RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH
A-2
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE
TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
A-3
[FORM OF FACE OF INITIAL NOTE]
No. $
GS ESCROW CORP.
Floating Rate Note due 2003
CUSIP No.
GS Escrow Corp., a Delaware corporation, promises to pay to ,
or registered assigns, the principal sum of Dollars on August 1, 2003.
Interest Payment Dates: February 1, May 1, August 1 and November 1,
commencing February 1, 1999.
Record Dates: January 15, April 15, July 15 and October 15.
A-4
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
GS ESCROW CORP.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: ________________ By:_________________________________
Authorized Signatory
A-5
[FORM OF REVERSE SIDE OF INITIAL NOTE]
GS ESCROW CORP.
Floating Rate Note due 2003
1. Interest
GS Escrow Corp., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuer"), promises to pay interest on the principal amount of this
Note at the rate per annum equal to the Applicable LIBOR Rate (as defined below)
determined as provided below; provided, however, that if (a) by the 75th day
following the date of consummation of both the Golden State Acquisition and the
Refinancing Transactions (or if such day is not a Business Day, the first
Business Day thereafter), neither the Shelf Registration Statement nor the
Exchange Offer Registration Statement has been filed with the SEC, the rate per
annum at which interest will accrue on the Notes will increase by 0.5% from and
including such date until but excluding the earlier of (i) the date the Shelf
Registration Statement or the Exchange Offer Registration Statement is filed and
(ii) the 180th day following the date of consummation of both the Golden State
Acquisition and the Refinancing Transactions (or if such day is not a Business
Day, the first Business Day thereafter) and (b) by the 180th day following the
date of consummation of both the Golden State Acquisition and the Refinancing
Transactions (or if such day is not a Business Day, the first Business Day
thereafter), neither (i) the Exchange Offer is consummated nor (ii) the Shelf
Registration Statement with respect to the resale of the Notes is declared
effective, the rate per annum at which interest will accrue on the Notes will
increase by 0.5% from and including such date until but excluding the earlier of
(i) the consummation of the Exchange Offer and (ii) the effective date of the
Shelf Registration Statement. The Issuer will pay interest in arrears on
February 1, 1999 and thereafter quarterly in arrears on May 1, August 1,
November 1, and February 1 of each year (each such date, subject to adjustment
as provided below, a "Floating Rate Interest Payment Date"). Interest on this
Note will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from August 6, 1998. The Issuer shall pay interest
on overdue principal at the rate borne by the Notes plus 1% per annum, and it
shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
For each Interest Period, interest will be calculated by multiplying
the outstanding principal amount of this Note by the Applicable LIBOR Rate for
such Interest Period, multiplying such product by the LIBOR Fraction for such
Interest Period; provided that if the outstanding principal amount of this Note
changes during such Interest Period, then the amount of interest for such
Interest Period shall be the
A-6
sum of the amounts of interest calculated for each portion of such Interest
Period for which a particular principal amount was outstanding, or a particular
Applicable LIBOR Rate was in effect, using, in each such case, an adjusted LIBOR
Fraction for each such portion that reflects the length of time that such
portion of the principal amount of this Note was outstanding or such Applicable
LIBOR Rate was in effect during such Interest Period. The Applicable LIBOR Rate
for each Interest Period (other than the initial Interest Period and other than
to the extent provided under paragraph 5(a) below) will be set on February 1,
May 1, August 1, and November 1 of each year, commencing with February 1, 1999
(each such date, subject to adjustment as provided below, an "Interest Reset
Date") until maturity or earlier redemption. If any Interest Reset Date and
Floating Rate Interest Payment Date would otherwise be a day that is not a LIBOR
Business Day, such Interest Reset Date and Floating Rate Interest Payment Date
shall be the next succeeding LIBOR Business Day, unless the next succeeding
LIBOR Business Day is in the next succeeding calendar month, in which case such
Interest Reset Date and Floating Rate Interest Payment Date shall be the
immediately preceding LIBOR Business Day. "LIBOR Business Day" means any day
that is not a Saturday or Sunday and that, in the City of New York or the City
of London, is not a day on which banking institutions are generally authorized
or obligated by law to close.
"Interest Period" shall mean the period from and including an Interest
Reset Date (or in the case of the initial Interest Period, the Issue Date) to
but excluding the next succeeding Interest Reset Date and, in the case of the
last such period, from and including the Interest Reset Date immediately
preceding the maturity date or a redemption date, as the case may be, to but not
including the maturity date or such redemption date, as the case may be. If the
redemption date or maturity date with respect to the Notes is not a LIBOR
Business Day, then the principal amount of the Notes plus accrued and unpaid
interest thereon shall be paid on the next succeeding Floating Rate Business Day
and no interest shall accrue for such maturity date, such redemption date or any
date thereafter. "Floating Rate Business Day" shall mean any day that is not a
Saturday or Sunday and that, in the City of New York, is not a day on which
banking institutions are generally authorized or obligated by law to close.
The "Applicable LIBOR Rate," with respect to an Interest Period (except
in the circumstances provided under paragraph 5(a) below) means 100 basis points
(the "Spread") over the rate (the "Base LIBOR Rate") (expressed as a percentage
per annum) for deposits in United States dollars for a three-month period
beginning on the second London Banking Day after the Interest Rate Determination
Date for such Interest Period that appears on Telerate Page 3750 as of 11:00
a.m., London time, on the Interest Rate Determination Date. If Telerate Page
3750 does not include such a rate or is unavailable on an Interest Rate
Determination Date, the Base LIBOR Rate for the Interest Period shall be the
arithmetic mean of the rates (expressed as a percentage per annum) for deposits
of $1,000,000 for a three-month
A-7
period beginning on the second London Banking Day after the Interest Rate
Determination Date that appears on Reuters Screen LIBO Page as of 11:00 a.m.,
London time, on the Interest Rate Determination Date. If Reuters Screen LIBO
Page does not include two or more rates or is unavailable on an Interest Rate
Determination Date, the Trustee shall request the principal London office of
each of four major banks in the London interbank market to provide such bank's
offered quotation (expressed as a percentage per annum), as of approximately
11:00 a.m., London time, on such Interest Rate Determination Date, to prime
banks in the London interbank market for deposits of $1,000,000 for a
three-month period beginning on the second London Banking Day after the Interest
Rate Determination Date. If at least two such offered quotations are so
provided, the Base LIBOR Rate for the Interest Period shall be the arithmetic
mean of such quotations. If fewer than two such quotations are so provided, the
Trustee shall request each of three major banks in New York City to provide such
bank's rate (expressed as a percentage per annum), as of approximately 11:00
a.m., New York City time, on such Interest Rate Determination Date, for loans of
$1,000,000 to leading European banks for a three-month period beginning on the
second London Banking Day after the Interest Rate Determination Date. If at
least two such rates are so provided, the Base LIBOR Rate for the Interest
Period will be the arithmetic mean of such rates. If fewer than two such rates
are so provided, then the Base LIBOR Rate for the Interest Period will be the
Base LIBOR Rate in effect with respect to the immediately preceding Interest
Period. Notwithstanding the foregoing, the Applicable LIBOR Rate for the initial
Interest Period shall be 6 3/4%.
"Interest Rate Determination Date" means, with respect to each Interest
Period, the second London Banking Day prior to the Interest Reset Date that
commences such Interest Period or, in the circumstances provided under paragraph
5(a) below, the second London Banking Day prior to the relevant Notice Date.
"LIBOR Fraction" means the actual number of days in the Interest Period
(or the relevant portion thereof) divided by 360.
"London Banking Day" means any day in which dealings in U.S. dollars
are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on The Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service).
"Telerate Page 3750" means the display designated as "Page 3750" on the
Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace page 3750 on that
service).
A-8
All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% being rounded to 9.87655%), and all dollar amounts used in or
resulting from such calculations will be rounded to the nearest cent (with
one-half cent being rounded upwards).
The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
The Calculation Agent will, upon the request of the Holder of any Note,
provide the interest rate then in effect with respect to the Notes. All
calculations made by the Calculation Agent in the absence of manifest error will
be conclusive for all purposes and binding on the Issuer and the Holder of this
Note.
2. Method of Payment
The Issuer will pay interest on the principal amount of the Notes to
the Persons who are registered holders of Notes at the close of business on the
January 15, April 15, July 15 or October 15 next preceding the Floating Rate
Interest Payment Date even if the Notes are canceled after the record date and
on or before the Interest Payment Date; provided, however, that interest
accruing on this Note prior to the consummation of the Exchange Offer or Private
Exchange will be paid to the holder of this Note or the Exchange Note, as the
case may be, on the record date next preceding the Floating Rate Interest
Payment Date following the consummation of the Exchange Offer or Private
Exchange. Defaulted interest will be paid in the manner set forth in the
Indenture. Holders must surrender the Notes to a Paying Agent to collect
principal payments. The Issuer will pay principal and interest in money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts. Payments in respect of the Notes represented by a
Global Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Issuer will make all payments in respect of a
certificated Note (including principal, premium and interest), by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on the Notes will be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
A-9
3. Paying Agent, Registrar and Calculation Agent
Initially, The Bank of New York (the "Trustee") will act as Paying
Agent, Registrar and Calculation Agent. The Issuer may appoint and change any
Paying Agent, Registrar, co-registrar or Calculation Agent without notice. The
Issuer or any of its domestically incorporated Wholly Owned Subsidiaries may act
as Paying Agent, Registrar or co-registrar and the Issuer may act as Calculation
Agent.
4. Indenture
This Note is one of the duly authorized issues of senior debentures,
notes, bonds or other evidences of indebtedness of the Issuer, of the series
herein specified, all issued or to be issued under and pursuant to the Indenture
dated August 6, 1998 between the Issuer and the Trustee (the "Indenture"), to
which reference is hereby made for a statement of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee and any
agent of the Trustee, any Paying Agent, the Issuer and the Holders of the Notes
and the terms upon which the Notes are issued and are to be authenticated and
delivered. The terms of the Notes include those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb) as
in effect on the date of the Indenture (the "TIA") and Securityholders are
referred to the TIA for a statement of those terms. Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture.
This Note is one of a series designated pursuant to the First
Supplemental Indenture dated as of August 6, 1998 as the Floating Rate Notes Due
2003 (the "Notes"), limited in aggregate principal amount to $250,000,000,
subject to Section 2.10 of the Indenture. The Notes include the Initial Notes
and any Exchange Notes issued in exchange for Initial Notes. The Initial Notes
and the Exchange Notes are treated as a single series of Securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Issuer, Holdings or Holdings' Subsidiaries to, among other things, (i) incur
Debt, (ii) make certain Restricted Payments, (iii) enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Subsidiaries, (iv) issue or sell shares of capital stock of the Bank, (v) enter
into or permit certain transactions with Affiliates and (vi) create or incur
Liens on assets of Holdings. Certain of these limitations may not be applicable
if the Notes are rated Investment Grade. The Indenture also imposes certain
limitations on the ability of Holdings or the Bank to consolidate or merge with
or into any other Person or convey or transfer all or substantially all of its
assets.
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5. Redemption
(a) Except as provided below in connection with a Change of Control,
the Notes may not be redeemed prior to August 1, 2000. Thereafter, the Notes may
be redeemed at the option of the Issuer, at any time as a whole, or from time to
time in part, on any Business Day at the following redemption prices (expressed
as percentages of principal amount), plus accrued and unpaid interest (if any)
to the date of redemption (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant Floating Rate
Interest Payment Date), if redeemed during the 12-month period commencing on
August 1 of the years set forth below:
Redemption
Period Price
------ ----------
2000......................... 101.50%
2001......................... 101.00%
2002......................... 100.50%
In the event that the redemption date will occur following the next
scheduled Interest Reset Date, the rate of interest on the Notes for the period
from the date on which a notice of redemption is given in accordance with the
Indenture (the "Notice Date") to the redemption date will be the higher of (x)
the Applicable LIBOR Rate in effect on the Notice Date and (y) the Applicable
LIBOR Rate that is determined by using the second London Banking Day preceding
the Notice Date as the Interest Rate Determination Date. In such case, the
Applicable LIBOR Rate will not be reset on the Interest Reset Date which follows
the Notice Date and precedes the redemption date, although accrued interest will
remain due and payable on the related Floating Rate Interest Payment Date.
Additionally, in the event of a Change of Control occurring prior to
August 1, 2000, the Notes may be redeemed (a "Change of Control Call Event"), in
whole but not in part, at the option of the Issuer at the redemption price set
forth below (the "Change of Control Price"). The Change of Control Price shall
equal the sum of: (i) the principal amount of the Notes to be redeemed plus (ii)
the accrued and unpaid interest (if any) to the date of redemption (subject to
the right of the holders of record on the relevant record date to receive
interest due on the relevant Floating Rate Interest Payment Date), plus (iii)
the Applicable Premium. In the event the redemption date will occur following
the next scheduled Interest Reset Date, the rate of interest on the Notes for
the period from the Notice Date to the redemption date will be determined as
provided in the preceding paragraph.
"Applicable Premium" means, with respect to a Note at any time of
determination, the excess, if any, of (A) the sum of the present values at such
time of
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(i) the redemption price for such Note on August 1, 2000 and (ii) the scheduled
interest payments that would be required from the redemption date to August 1,
2000 in respect of such Note to be redeemed, if the Applicable LIBOR Rate were
the Designated Fixed Rate (as defined below), using in each case a discount rate
equal to the Treasury Rate plus 50 basis points, over (B) the then outstanding
principal amount of such Note to be redeemed. For purposes of the foregoing, the
Designated Fixed Rate shall be a rate per annum equal to the sum of (a) the
Treasury Rate plus (b) the Spread plus (c) 47 basis points.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two Business Days prior to the date fixed
for repayment or, in the case of defeasance, prior to the date of deposit or, in
the case of a Change of Control Call Event, prior to the relevant Notice Date
(or, if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the then remaining Average
Life to Stated Maturity of the Notes; provided, however, that, if the Average
Life to Stated Maturity of the Notes is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that, if the Average
Life to Stated Maturity of the Notes is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used; provided, however, that with
respect to the Notes, for purposes of calculating the Applicable Premium in the
event of a Change of Control Call Event, the Treasury Rate shall be determined
assuming a Stated Maturity of August 1, 2000 for such Notes.
(b) Notwithstanding the foregoing, in the event that (i) the Golden
State Acquisition, the Refinancing Transactions and the Escrow Corp. Merger are
not consummated on or prior to January 15, 1999 or (ii) the Merger Agreement or
the related Plan of Merger are terminated or the Golden State Acquisition is
abandoned prior to such date, then the Issuer will redeem all of the Notes on
the Mandatory Redemption Date at a redemption price in cash equal to 100% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon, if
any, to the Mandatory Redemption Date (subject to the right of holders of record
on the relevant record date to receive interest due on the relevant Floating
Rate Interest Payment Date).
"Mandatory Redemption Date" means the earlier of (a) February 1, 1999,
in the event that the Escrow Corp. Merger, the Golden State Acquisition and the
Refinancing Transactions are not consummated on or prior to January 15, 1999,
and (b) the 15th day (or if such day is not a Business Day, the next following
A-12
Business Day) following the termination of either or both of the Merger
Agreement or the Plan of Merger or the abandonment of the Golden State
Acquisition in the event of such termination or abandonment.
"Plan of Merger" means the Agreement and Plan of Merger dated as of
February 4, 1998 among Parent Holdings, Holdings, First Gibraltar Holdings,
Inc., Hunters ▇▇▇▇/Ford Ltd., Golden State and Golden State Financial
Corporation, as amended from time to time.
6. Sinking Fund
The Notes of this series are not subject to any sinking fund.
7. Notice of Redemption
Notice of optional redemption pursuant to paragraph 5(a) will be mailed
at least 30 days but not more than 60 days before any redemption date, and
notice of mandatory redemption pursuant to paragraph 5(b) will be mailed
promptly after the occurrence of the event triggering such redemption, but in no
event less than 10 days prior to the Mandatory Redemption Date, in each case to
each Holder of Notes to be redeemed at his or her address appearing in the
Security Register; provided, however, that in the event the redemption date will
occur following the next scheduled Interest Reset Date, notice of redemption
will be given in accordance with the Indenture at least 30 but not more than 35
days before the applicable redemption date. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of all Notes (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent (or if the
Issuer or a Subsidiary of the Issuer acts as the Paying Agent, it segregates the
money held by it as Paying Agent and holds it as a separate trust fund) on or
before the redemption date and certain other conditions are satisfied, then on
and after such date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of
Control
Upon the occurrence of a Change of Control, each Holder of Notes will
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of the Notes of such Holder at a
purchase price equal to 101% of the principal amount of the Notes to be
repurchased plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant Floating Rate Interest Payment Date) as
provided in, and subject to the terms of, the Indenture; provided, however, that
notwithstanding the occurrence of a Change in Control, the Issuer shall not be
obligated to purchase the Notes in the event that it
A-13
has exercised its right to redeem all the Notes pursuant to the provisions under
paragraph 5(a) above.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture. Upon any transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Issuer shall not be required (i) to issue,
register the transfer of or exchange any Note during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of the Notes selected for redemption and ending at the close of
business on the date of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part.
10. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Issuer at
its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Issuer and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions and except as otherwise provided below,
the Issuer at any time may terminate some of or all its obligations under the
Notes and the Indenture in respect of the Notes if the Issuer deposits with the
Trustee money or U.S. Government Obligations for the payment of principal and
interest on the Notes to redemption or maturity, as the case may be.
The Notes will not be subject to any defeasance option prior to August
1, 2000 unless at the time the Issuer is entitled to exercise a right of
redemption resulting from the occurrence of a Change of Control Call Event. In
connection with the exercise of any defeasance option in respect of the Notes,
the Issuer must make irrevocable arrangements with the Trustee to call such
notes for redemption on a redemption date not later than the next scheduled
Interest Reset Date;
A-14
provided, however, that such redemption date may be after the next scheduled
Interest Reset Date if it is not later than 35 days following the required
deposit in the defeasance trust and delivery of the Opinions of Counsel required
by the Indenture.
13. Amendment; Supplement; Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities of any series may be amended or one or more
supplemental indentures may be entered into with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
of each series affected by such amendment or supplemental indenture and (ii) any
default or noncompliance with any provision in any series may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities of such series. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of the Notes or any other series of
Securities, the Issuer and the Trustee may enter into one or more amendments or
indentures supplemental to the Indenture for, among others, one or more of the
following purposes: (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to comply with Article 5 or Section 4.10 of the Indenture;
(iii) to provide for uncertificated Securities in addition to or in place of
certificated Securities; (iv) to add Guarantees with respect to the Securities
of any series, or to remove such Guarantees, when permitted by the terms of the
Indenture or to secure (or provide additional security for) the Securities of
any series; (v) to establish any form of Security and provide for the issuance
of Securities in series and to set forth the terms thereof, and/or to add to the
rights of the holders of the Securities of any series; (vi) to add additional
covenants or to surrender rights or powers conferred on the Issuer; (vii) to
evidence and provide for the acceptance of appointment by another corporation as
a successor Trustee under the Indenture with respect to one or more series of
Securities and to add to or change any of the provisions of the Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
thereunder by more than one Trustee; (viii) to add any additional Events of
Default in respect of Securities of any series; (ix) to provide for the issuance
of Securities in coupon as well as fully registered form; (x) to comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA or to otherwise comply with the TIA; or (xi) to make any
change that does not adversely affect the rights of any Holder of the Securities
of any series. A consent to any amendment or waiver of any provision in the
Indenture or in the Securities of any series by any Holder given in connection
with a tender of such Holder's Securities shall not be rendered invalid by such
tender.
14. Defaults and Remedies
If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Notes, subject to certain limitations, may declare all the Notes to be
immediately due
A-15
and payable. Certain events of bankruptcy or insolvency are Events of Default
and shall result in the Notes being immediately due and payable upon the
occurrence of such Events of Default without any further act of the Trustee or
any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Notes may direct the Trustee in its exercise of any trust or power under the
Indenture in respect of the Notes. The Holders of a majority in principal amount
of the Notes, by written notice to the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to the
Notes have been cured or waived except nonpayment of principal or interest that
has become due solely because of such acceleration.
15. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Issuer
shall not have any liability for any obligations of the Issuer under the Notes
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their crea tion. By accepting a Note, each Securityholder waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
A-16
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Issuer will furnish to any Holder of Notes upon written request and
without charge to the Holder a copy of the Indenture.
A-17
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of
the Issuer. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
----------------- ---------------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act of 1933 after the later of the date of original
issuance of such Notes and the last date, if any, on which such Notes were owned
by the Issuer or any Affiliate of the Issuer, the undersigned confirms that such
Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Issuer; or
(2) / / pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) / / inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to
A-18
and in compliance with Rule 144A under the Securities Act of
1933; or
(4) / / outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act of 1933; or
(5) / / to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that
has furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee or the Issuer); or
(6) / / pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however,
that if box (4), (5) or (6) is checked, the Trustee may require, prior
to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Issuer has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
--------------------------------
Your Signature
Signature Guarantee:
Date:
---------------------- --------------------------------
Signature must be guaranteed Signature of Signature Guarantee
by a participant in a recognized
signature guaranty medallion
program or other signature
guarantor acceptable to the
Trustee
--------------------------------------------------------------------------------
A-19
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Issuer as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
-------------------- ------------------------------
NOTICE: To be executed by an
executive officer
A-20
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $ . The
following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
A-21
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant
to Section 4.06 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Note purchased by the
Issuer pursuant to Section 4.06 of the Indenture, state the amount: $
Date: __________________ Your Signature:_____________________________
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee:___________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee
A-22
EXHIBIT B TO FIRST
SUPPLEMENTAL INDENTURE
[FORM OF FACE OF EXCHANGE NOTE]
No. $
[GS ESCROW CORP.] [GOLDEN STATE HOLDINGS INC.]
Floating Rate Note due 2003
CUSIP No. ______
[GS Escrow Corp.] [Golden State Holdings Inc.],(1) a Delaware
corporation, promises to pay to ________________, or registered assigns, the
principal sum of ______________ Dollars on August 1, 2003.
Interest Payment Dates: February 1, May 1, August 1 and November 1,
commencing February 1, 1999.
Record Dates: January 15, April 15, July 15 and October 15.
-----------------
(1) Golden State Holdings Inc. if the Exchange Offer occurs after the Escrow
Corp. Merger.
B-1
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
[GS ESCROW CORP.]
[GOLDEN STATE HOLDINGS INC.]
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: __________________ By:_________________________________
Authorized Signatory
------------
* If the Security is to be issued in global form, add the Global Securities
Legend from Exhibit A to the Applicable Supplemental Indenture and the
attachment from such Exhibit A captioned "TO BE ATTACHED TO GLOBAL SECURITIES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY."
** If the Security is a Private Exchange Note issued in a Private Exchange to
an Initial Purchaser holding an unsold portion of its initial allotment, add the
Restricted Securities Legend from Exhibit A and replace the Assignment Form
included in this Exhibit B with the Assignment Form included in such Exhibit A.
B-2
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
[GS ESCROW CORP.] [GOLDEN STATE HOLDINGS INC.]
Floating Rate Note due 2003
1. Interest
[GS Escrow Corp.] [Golden State Holdings Inc.], a Delaware corporation
(such corporation, and its successors and assigns under the Indenture, being
herein called the "Issuer"), promises to pay interest on the principal amount of
this Note at the rate per annum equal to the Applicable LIBOR Rate (as defined
below) determined as provided below. The Issuer will pay interest in arrears on
February 1, 1999 and thereafter quarterly in arrears on May 1, August 1,
November 1, and February 1 of each year (each such date, subject to adjustment
as provided below, a "Floating Rate Interest Payment Date"); provided, however,
that interest accruing on the Initial Note prior to the consummation of the
Exchange Offer or Private Exchange will be paid to the holder of the Initial
Note or the Exchange Note, as the case may be, on the record date next preceding
the Floating Rate Interest Payment Date following the consummation of the
Exchange Offer or Private Exchange. Interest on this Note will accrue from the
most recent date to which interest has been paid on the Initial Notes or, if no
interest has been paid on the Initial Notes, on the Exchange Notes from August
6, 1998. The Issuer shall pay interest on overdue principal at the rate borne by
the Notes plus 1% per annum, and it shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
For each Interest Period, interest will be calculated by multiplying
the outstanding principal amount of this Note by the Applicable LIBOR Rate for
such Interest Period, multiplying such product by the LIBOR Fraction for such
Interest Period (without duplication of the interest that accrued on the Initial
Note in exchange for which this Note was issued); provided that if the
outstanding principal amount of this Note changes during such Interest Period,
then the amount of interest for such Interest Period shall be the sum of the
amounts of interest calculated for each portion of such Interest Period for
which a particular principal amount was outstanding, or a particular Applicable
LIBOR Rate was in effect, using, in each such case, an adjusted LIBOR Fraction
for each such portion that reflects the length of time that such portion of the
principal amount of this Note was outstanding or such Applicable LIBOR Rate was
in effect during such Interest Period. The Applicable LIBOR Rate for each
Interest Period (other than the initial Interest Period and other than to the
extent provided under paragraph 5(a) below) will be set on February 1, May 1,
August 1, and November 1 of each year, commencing with February 1, 1999 (each
such date, subject to adjustment as provided below, an "Interest Reset Date")
until maturity or earlier redemption. If any Interest Reset Date and Floating
Rate Interest Payment
B-3
Date would otherwise be a day that is not a LIBOR Business Day, such Interest
Reset Date and Floating Rate Interest Payment Date shall be the next succeeding
LIBOR Business Day, unless the next succeeding LIBOR Business Day is in the next
succeeding calendar month, in which case such Interest Reset Date and Floating
Rate Interest Payment Date shall be the immediately preceding LIBOR Business
Day. "LIBOR Business Day" means any day that is not a Saturday or Sunday and
that, in the City of New York or the City of London, is not a day on which
banking institutions are generally authorized or obligated by law to close.
"Interest Period" shall mean the period from and including an Interest
Reset Date (or in the case of the initial Interest Period, the Issue Date) to
but excluding the next succeeding Interest Reset Date and, in the case of the
last such period, from and including the Interest Reset Date immediately
preceding the maturity date or a redemption date, as the case may be, to but not
including the maturity date or such redemption date, as the case may be. If the
redemption date or maturity date with respect to the Notes is not a LIBOR
Business Day, then the principal amount of the Notes plus accrued and unpaid
interest thereon shall be paid on the next succeeding Floating Rate Business Day
and no interest shall accrue for such maturity date, such redemption date or any
date thereafter. "Floating Rate Business Day" shall mean any day that is not a
Saturday or Sunday and that, in the City of New York, is not a day on which
banking institutions are generally authorized or obligated by law to close.
The "Applicable LIBOR Rate," with respect to an Interest Period (except
in the circumstances provided under paragraph 5(a) below) means 100 basis points
(the "Spread") over the rate (the "Base LIBOR Rate") (expressed as a percentage
per annum) for deposits in United States dollars for a three-month period
beginning on the second London Banking Day after the Interest Rate Determination
Date for such Interest Period that appears on Telerate Page 3750 as of 11:00
a.m., London time, on the Interest Rate Determination Date. If Telerate Page
3750 does not include such a rate or is unavailable on an Interest Rate
Determination Date, the Base LIBOR Rate for the Interest Period shall be the
arithmetic mean of the rates (expressed as a percentage per annum) for deposits
of $1,000,000 for a three-month period beginning on the second London Banking
Day after the Interest Rate Determination Date that appears on Reuters Screen
LIBO Page as of 11:00 a.m., London time, on the Interest Rate Determination
Date. If Reuters Screen LIBO Page does not include two or more rates or is
unavailable on an Interest Rate Determination Date, the Trustee shall request
the principal London office of each of four major banks in the London interbank
market to provide such bank's offered quotation (expressed as a percentage per
annum), as of approximately 11:00 a.m., London time, on such Interest Rate
Determination Date, to prime banks in the London interbank market for deposits
of $1,000,000 for a three-month period beginning on the second London Banking
Day after the Interest Rate Determination Date. If at least two such offered
quotations are so provided, the Base LIBOR Rate for the
B-4
Interest Period shall be the arithmetic mean of such quotations. If fewer than
two such quotations are so provided, the Trustee shall request each of three
major banks in New York City to provide such bank's rate (expressed as a
percentage per annum), as of approximately 11:00 a.m., New York City time, on
such Interest Rate Determination Date, for loans of $1,000,000 to leading
European banks for a three-month period beginning on the second London Banking
Day after the Interest Rate Determination Date. If at least two such rates are
so provided, the Base LIBOR Rate for the Interest Period will be the arithmetic
mean of such rates. If fewer than two such rates are so provided, then the Base
LIBOR Rate for the Interest Period will be the Base LIBOR Rate in effect with
respect to the immediately preceding Interest Period. Notwithstanding the
foregoing, the Applicable LIBOR Rate for the initial Interest Period shall
be 6-3/4%.
"Interest Rate Determination Date" means, with respect to each Interest
Period, the second London Banking Day prior to the Interest Reset Date that
commences such Interest Period or, in the circumstances provided under paragraph
5(a) below, the second London Banking Day prior to the relevant Notice Date.
"LIBOR Fraction" means the actual number of days in the Interest Period
(or the relevant portion thereof) divided by 360.
"London Banking Day" means any day in which dealings in U.S. dollars
are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on The Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service).
"Telerate Page 3750" means the display designated as "Page 3750" on the
Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace page 3750 on that
service).
All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% being rounded to 9.87655%), and all dollar amounts used in or
resulting from such calculations will be rounded to the nearest cent (with
one-half cent being rounded upwards).
The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
B-5
The Calculation Agent will, upon the request of the Holder of any Note,
provide the interest rate then in effect with respect to the Notes. All
calculations made by the Calculation Agent in the absence of manifest error will
be conclusive for all purposes and binding on the Issuer and the Holder of this
Note.
2. Method of Payment
The Issuer will pay interest on the principal amount of the Notes to
the Persons who are registered holders of Notes at the close of business on the
January 15, April 15, July 15 or October 15 next preceding the Floating Rate
Interest Payment Date even if the Notes are canceled after the record date and
on or before the Interest Payment Date. The Issuer will pay interest referred to
in paragraph 1 of the Initial Notes (except defaulted interest) on the Initial
Notes in exchange for which the Exchange Notes were issued to the Persons who,
at the close of business on the January 15, April 15, July 15 or October 15 next
preceding the applicable Interest Payment Date, are registered holders of such
Initial Notes, if such record date occurs prior to such exchange, or registered
holders of the Exchange Notes, if such record date occurs on or after the date
of such exchange, even if such Initial Notes or Exchange Notes are canceled
after the record date and on or before such Interest Payment Date. Defaulted
interest will be paid in the manner set forth in the Indenture. Holders must
surrender the Notes to a Paying Agent to collect principal payments. The Issuer
will pay principal and interest in money of the United States of America that at
the time of payment is legal tender for payment of public and private debts.
Payments in respect of the Notes represented by a Global Security (including
principal, premium and interest) will be made by wire transfer of immediately
available funds to the accounts specified by The Depository Trust Company. The
Issuer will make all payments in respect of a certificated Note (including
principal, premium and interest), by mailing a check to the registered address
of each Holder thereof; provided, however, that payments on the Notes will be
made, in the case of a Holder of at least $1,000,000 aggregate principal amount
of Notes, by wire transfer to a U.S. dollar account maintained by the payee with
a bank in the United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent, Registrar and Calculation Agent
Initially, The Bank of New York (the "Trustee") will act as Paying
Agent, Registrar and Calculation Agent. The Issuer may appoint and change any
Paying Agent, Registrar, co-registrar or Calculation Agent without notice. The
Issuer or any of its domestically incorporated Wholly Owned Subsidiaries may act
as Paying Agent, Registrar or co-registrar and the Issuer may act as Calculation
Agent.
B-6
4. Indenture
This Note is one of the duly authorized issues of senior debentures,
notes, bonds or other evidences of indebtedness of the Issuer, of the series
herein specified, all issued or to be issued under and pursuant to the Indenture
dated August 6, 1998 between the Issuer and the Trustee (the "Indenture"), to
which reference is hereby made for a statement of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee and any
agent of the Trustee, any Paying Agent, the Issuer and the Holders of the Notes
and the terms upon which the Notes are issued and are to be authenticated and
delivered. The terms of the Notes include those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb) as
in effect on the date of the Indenture (the "TIA") and Securityholders are
referred to the TIA for a statement of those terms. Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture.
This Note is one of a series designated pursuant to the First
Supplemental Indenture dated as of August 6, 1998 as the Floating Rate Notes Due
2003 (the "Notes"), limited in aggregate principal amount to $250,000,000,
subject to Section 2.10 of the Indenture. The Notes include the Initial Notes
and any Exchange Notes issued in exchange for Initial Notes. The Initial Notes
and the Exchange Notes are treated as a single series of Securities under the
Indenture. The Indenture imposes certain limitations on the ability of the
Issuer, Holdings or Holdings' Subsidiaries to, among other things, (i) incur
Debt, (ii) make certain Restricted Payments, (iii) enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Subsidiaries, (iv) issue or sell shares of capital stock of the Bank, (v) enter
into or permit certain transactions with Affiliates and (vi) create or incur
Liens on assets of Holdings. Certain of these limitations may not be applicable
if the Notes are rated Investment Grade. The Indenture also imposes certain
limitations on the ability of Holdings or the Bank to consolidate or merge with
or into any other Person or convey or transfer all or substantially all of its
assets.
5. Redemption
(a) Except as provided below in connection with a Change of Control,
the Notes may not be redeemed prior to August 1, 2000. Thereafter, the Notes may
be redeemed at the option of the Issuer, at any time as a whole, or from time to
time in part, on any Business Day at the following redemption prices (expressed
as percentages of principal amount), plus accrued and unpaid interest (if any)
to the date of redemption (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant Floating Rate
Interest Payment Date), if redeemed during the 12-month period commencing on
August 1 of the years set forth below:
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Redemption
Period Price
------ ----------
2000........................... 101.50%
2001........................... 101.00%
2002........................... 100.50%
In the event that the redemption date will occur following the next
scheduled Interest Reset Date, the rate of interest on the Notes for the period
from the date on which a notice of redemption is given in accordance with the
Indenture (the "Notice Date") to the redemption date will be the higher of (x)
the Applicable LIBOR Rate in effect on the Notice Date and (y) the Applicable
LIBOR Rate that is determined by using the second London Banking Day preceding
the Notice Date as the Interest Rate Determination Date. In such case, the
Applicable LIBOR Rate will not be reset on the Interest Reset Date which follows
the Notice Date and precedes the redemption date, although accrued interest will
remain due and payable on the related Floating Rate Interest Payment Date.
Additionally, in the event of a Change of Control occurring prior to
August 1, 2000, the Notes may be redeemed (a "Change of Control Call Event"), in
whole but not in part, at the option of the Issuer at the redemption price set
forth below (the "Change of Control Price"). The Change of Control Price shall
equal the sum of: (i) the principal amount of the Notes to be redeemed plus (ii)
the accrued and unpaid interest (if any) to the date of redemption (subject to
the right of the holders of record on the relevant record date to receive
interest due on the relevant Floating Rate Interest Payment Date), plus (iii)
the Applicable Premium. In the event the redemption date will occur following
the next scheduled Interest Reset Date, the rate of interest on the Notes for
the period from the Notice Date to the redemption date will be determined as
provided in the preceding paragraph.
"Applicable Premium" means, with respect to a Note at any time of
determination, the excess, if any, of (A) the sum of the present values at such
time of (i) the redemption price for such Note on August 1, 2000 and (ii) the
scheduled interest payments that would be required from the redemption date to
August 1, 2000 in respect of such Note to be redeemed, if the Applicable LIBOR
Rate were the Designated Fixed Rate (as defined below), using in each case a
discount rate equal to the Treasury Rate plus 50 basis points, over (B) the then
outstanding principal amount of such Note to be redeemed. For purposes of the
foregoing, the Designated Fixed Rate shall be a rate per annum equal to the sum
of (a) the Treasury Rate plus (b) the Spread plus (c) 47 basis points.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has
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become publicly available at least two Business Days prior to the date fixed for
repayment or, in the case of defeasance, prior to the date of deposit or, in the
case of a Change of Control Call Event, prior to the relevant Notice Date (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the then remaining Average
Life to Stated Maturity of the Notes; provided, however, that, if the Average
Life to Stated Maturity of the Notes is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that, if the Average
Life to Stated Maturity of the Notes is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used; provided, however, that with
respect to the Notes, for purposes of calculating the Applicable Premium in the
event of a Change of Control Call Event, the Treasury Rate shall be determined
assuming a Stated Maturity of August 1, 2000 for such Notes.
(b) Notwithstanding the foregoing, in the event that (i) the Golden
State Acquisition, the Refinancing Transactions and the Escrow Corp. Merger are
not consummated on or prior to January 15, 1999 or (ii) the Merger Agreement or
the related Plan of Merger are terminated or the Golden State Acquisition is
abandoned prior to such date, then the Issuer will redeem all of the Notes on
the Mandatory Redemption Date at a redemption price in cash equal to 100% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon, if
any, to the Mandatory Redemption Date (subject to the right of holders of record
on the relevant record date to receive interest due on the relevant Floating
Rate Interest Payment Date).
"Mandatory Redemption Date" means the earlier of (a) February 1, 1999,
in the event that the Escrow Corp. Merger, the Golden State Acquisition and the
Refinancing Transactions are not consummated on or prior to January 15, 1999,
and (b) the 15th day (or if such day is not a Business Day, the next following
Business Day) following the termination of either or both of the Merger
Agreement or the Plan of Merger or the abandonment of the Golden State
Acquisition in the event of such termination or abandonment.
"Plan of Merger" means the Agreement and Plan of Merger dated as of
February 4, 1998 among Parent Holdings, Holdings, First Gibraltar Holdings,
Inc., Hunters ▇▇▇▇/Ford Ltd., Golden State and Golden State Financial
Corporation, as amended from time to time.
6. Sinking Fund
The Notes of this series are not subject to any sinking fund.
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7. Notice of Redemption
Notice of optional redemption pursuant to paragraph 5(a) will be mailed
at least 30 days but not more than 60 days before any redemption date, and
notice of mandatory redemption pursuant to paragraph 5(b) will be mailed
promptly after the occurrence of the event triggering such redemption, but in no
event less than 10 days prior to the Mandatory Redemption Date, in each case to
each Holder of Notes to be redeemed at his or her address appearing in the
Security Register; provided, however, that in the event the redemption date will
occur following the next scheduled Interest Reset Date, notice of redemption
will be given in accordance with the Indenture at least 30 but not more than 35
days before the applicable redemption date. Notes in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of all Notes (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent (or if the
Issuer or a Subsidiary of the Issuer acts as the Paying Agent, it segregates the
money held by it as Paying Agent and holds it as a separate trust fund) on or
before the redemption date and certain other conditions are satisfied, then on
and after such date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of
Control
Upon the occurrence of a Change of Control, each Holder of Notes will
have the right, subject to certain conditions specified in the Indenture, to
cause the Issuer to repurchase all or any part of the Notes of such Holder at a
purchase price equal to 101% of the principal amount of the Notes to be
repurchased plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant Floating Rate Interest Payment Date) as
provided in, and subject to the terms of, the Indenture; provided, however, that
notwithstanding the occurrence of a Change in Control, the Issuer shall not be
obligated to purchase the Notes in the event that it has exercised its right to
redeem all the Notes pursuant to the provisions under paragraph 5(a) above.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture. Upon any transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Issuer shall not be required (i) to issue,
register the transfer of or exchange any Note during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of the Notes selected for
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redemption and ending at the close of business on the date of such mailing, or
(ii) to register the transfer of or exchange any Note so selected for redemption
in whole or in part.
10. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Issuer at
its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Issuer and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions and except as otherwise provided below,
the Issuer at any time may terminate some of or all its obligations under the
Notes and the Indenture in respect of the Notes if the Issuer deposits with the
Trustee money or U.S. Government Obligations for the payment of principal and
interest on the Notes to redemption or maturity, as the case may be.
The Notes will not be subject to any defeasance option prior to August
1, 2000 unless at the time the Issuer is entitled to exercise a right of
redemption resulting from the occurrence of a Change of Control Call Event. In
connection with the exercise of any defeasance option in respect of the Notes,
the Issuer must make irrevocable arrangements with the Trustee to call such
notes for redemption on a redemption date not later than the next scheduled
Interest Reset Date; provided, however, that such redemption date may be after
the next scheduled Interest Reset Date if it is not later than 35 days following
the required deposit in the defeasance trust and delivery of the Opinions of
Counsel required by the Indenture.
13. Amendment; Supplement; Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities of any series may be amended or one or more
supplemental indentures may be entered into with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
of each series affected by such amendment or supplemental indenture and (ii) any
default or noncompliance with any provision in any series may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities of such series. Subject to
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certain exceptions set forth in the Indenture, without the consent of any Holder
of the Notes or any other series of Securities, the Issuer and the Trustee may
enter into one or more amendments or indentures supplemental to the Indenture
for, among others, one or more of the following purposes: (i) to cure any
ambiguity, omission, defect or inconsistency; (ii) to comply with Article 5 or
Section 4.10 of the Indenture; (iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities; (iv) to add Guarantees with
respect to the Securities of any series, or to remove such Guarantees, when
permitted by the terms of the Indenture or to secure (or provide additional
security for) the Securities of any series; (v) to establish any form of
Security and provide for the issuance of Securities in series and to set forth
the terms thereof, and/or to add to the rights of the holders of the Securities
of any series; (vi) to add additional covenants or to surrender rights or powers
conferred on the Issuer; (vii) to evidence and provide for the acceptance of
appointment by another corporation as a successor Trustee under the Indenture
with respect to one or more series of Securities and to add to or change any of
the provisions of the Indenture as shall be necessary to provide for or
facilitate the administration of the trusts thereunder by more than one Trustee;
(viii) to add any additional Events of Default in respect of Securities of any
series; (ix) to provide for the issuance of Securities in coupon as well as
fully registered form; (x) to comply with any requirements of the Commission in
connection with the qualification of the Indenture under the TIA or to otherwise
comply with the TIA; or (xi) to make any change that does not adversely affect
the rights of any Holder of the Securities of any series. A consent to any
amendment or waiver of any provision in the Indenture or in the Securities of
any series by any Holder given in connection with a tender of such Holder's
Securities shall not be rendered invalid by such tender.
14. Defaults and Remedies
If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Notes, subject to certain limitations, may declare all the Notes to be
immediately due and payable. Certain events of bankruptcy or insolvency are
Events of Default and shall result in the Notes being immediately due and
payable upon the occurrence of such Events of Default without any further act of
the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Notes may direct the Trustee in its exercise of any trust or power under the
Indenture in respect of the Notes. The Holders of a majority in principal amount
of the Notes, by written notice to the Trustee, may rescind any declaration of
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to the
Notes have been cured or waived
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except nonpayment of principal or interest that has become due solely because of
such acceleration.
15. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Issuer
shall not have any liability for any obligations of the Issuer under the Notes
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their crea tion. By accepting a Note, each Securityholder waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP numbers to
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be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Issuer will furnish to any Holder of Notes upon written request and
without charge to the Holder a copy of the Indenture.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of
the Issuer. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
-------------- -----------------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note. Signature must
be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant
to Section 4.06 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Note purchased by the
Issuer pursuant to Section 4.06 of the Indenture, state the amount: $
Date: __________________ Your Signature: ________________________
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee:______________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee
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